Attorneys for Maher Arar have filed a petition for a writ of certiorari with the Supreme Court after the United States Court of Appeals for the Second Circuit ruled that Arar could not sue federal officials for damages until Congress authorizes such a suit. Arar, a Canadian citizen, was arrested by U.S. authorities at the JFK International Airport in 2002 after Canadian police provided authorities with information allegedly connecting Arar with terrorist organizations. Arar was detained in the U.S. for two weeks before the U.S. engaged in extraordinary rendition and sent him first to Jordan, then to Syria. While in Damascus, Arar was allegedly consigned to a grave-sized, underground cell and tortured over the course of a year before being returned to Canada. Eventually, both Canadian and U.S. authorities officially apologized to Arar and it was acknowledged that he had sense been cleared of all suspicion.
The Second Circuit ruled in November 2009 that permitting cases alleging rendition to proceed in federal court would “affect diplomacy, foreign policy and the security of the nation” and that judicial review would “ offend the separation of powers.” The opinion further stated that it is the role of Congress, and not of jurists, to implement, regulate, and provide redress in instances of extraordinary rendition. In their petition for certiorari, Arar’s lawyers frame the primary issue as “whether federal officials who conspired with Syrian officials to subject an individual in U.S. custody in the United States to torture in Syria may be sued for damages…” If the Supreme Court decides to grant certiorari, their resulting decision will have a momentous impact on a number of issues including executive powers, separation of powers, state secrets and the practice of extraordinary rendition. Regarding the November 2009 ruling, the New York Times wrote that, “the ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct. The overt disregard for the central role of judges in policing executive branch excesses has frightening implications for safeguarding civil liberties….”
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